A country with too many laws is a country with too many problems
Venkatesh K
A Tiger’s Tail and Cure-All Laws
This article originally appeared in centreright.in. CRI content has now been subsumed in swarajyamag.com. The views expressed here are personal and do not necessarily reflect those of the editors of swarajyamag.com

Many old folktales of Bharat use delightful bits of dark humor to deliver subtle messages of great wisdom. I recount one such little story from Kerala. An old Namboodiri went to his neighboring village to attend a feast. For the benefit of my readers who don’t know what a Namboodiri is, I’ll explain briefly in 3 sentences. Namboodiris were the highest ranking Brahmanas of old feudal Kerala. In the days of yore, these guys were typically hardcore Manuvadis. Apparently, they’ve switched from Manu to Marx in the last century.

Resuming our story, this old Namboo had a good time at the neighboring village and a nice hearty meal. It was late afternoon by the time he started again to return back to his own village. There was a stretch of thick jungle that he had to pass through on the way. As our dear Namboo was passing through this place, he suddenly saw a tiger almost in front of him. Fortunately for him, the tiger had his back to him and the wind was blowing from the other direction. The tiger’s tail protruded in between the fork-like branches of a thick sturdy tree. The old Brahman was in a bit of panic. He grabbed the tail of the tiger, pulled it tightly and held on for dear life. The tiger was now firmly wedged against the tree trunk and could not move. But the old man was now in a terrible fix. How long can he hold onto the tiger’s tail without sapping his strength? Will the raging tiger spare him if he lets go? The story ends at this point leaving the fate of the Namboodiri and the tiger to our imagination.

Our liberal intelligentsia and parliamentarians have not been much wiser than the old namboodiri when it comes to tacking our social ills. They’ve rushed head on with one single prescription -“Enact stronger laws”. Whether it’s bride-burning for dowry or violence against Dalits, the parliament has responded by adopting “stronger” laws. But these laws have become prone to misuse over time. Eventually they turn into tools of harassment that the organs of state and shameless blackmailers can use against innocent victims for their own vile ends. But these laws cannot be repealed later as the tiger in the form of activists and vested interest groups will not allow it.

Section 498A

If there is any section of the Indian Penal Code that has wrecked countless homes, this is it. Perfectly innocent and respectable men have lost the prime of their youth to this monster of a law. Many have spent significant time behind bars and their careers have been wrecked. A vengeful wife armed with this law has driven many a man to suicide. Instead of protecting women, this has become a tool to harass the women of husband’s family by corrupt police and selfish wives. Frequently, the poor husband’s whole family get arrested and indicted in criminal cases for no fault of their own.

The conviction rate is abysmal (<2%) and many cases have been proven to be utterly baseless in courts. Typically, most men end up shelling up huge money to both blackmailing wives and the local Thanedar. Yet, there seems to be no significant reduction in either the practice of dowry or the actual incidence of dowry related deaths. Surprisingly, there are also many instances of dowry death where the unfortunate victims were daughters of policemen or powerful politicians.

The Atrocities Act

This was the 1st instance when the parliament actually created a criminal law almost parallel to the IPC. There was a lot of uproar when the proposed communal violence bill sought to recognize the crimes only in specific contexts of the religions of the perpetrator (majority) and the victim (minority). But, this act suffers from the same flaw in essence. Crimes are recognized under this act only if the perpetrator belongs to an upper caste and victim is a Dalit. If a creamy-layer Dalit commits a similar atrocity on a Maha-Dalit for similar caste-inspired reasons, it would not be covered under this act! Surely, this act itself was a parliamentary atrocity.

There was a recent case in a metro city where a tenant had lodged a complaint against her landlord under this act after a rental dispute. The poor man did not even know the caste of his tenant. An Andhra MP slapped a bank manager in full public view and later lodged case against victim of his assault under this act. In many Sarkari offices, senior officers don’t even dare to reprimand their erring juniors if they happen to be politically connected Dalits. This law is a particular favorite in academic circles to fix people. Despite all the “teeth” provided in this law, it has still failed in its primary objective. In 2010, the then home minister, P Chidambaram admitted that the conviction rates were low and the deterrence value for preventing violence against Dalits was questionable. If the position of Dalits has improved for the better in these years, it is directly attributable to their successful political mobilization by parties like BSP rather than any laws.

How do these laws get through?

When the nakedly biased communal violence was proposed, there was predictable outrage and determined opposition. This was certainly justified. However, there was hardly a whimper of protest when a similarly retrograde law like the Domestic Violence Bill was passed. The reason for such a careless attitude is easy to trace. Usually such laws are passed in the wake of a sufficiently brutal incident that has triggered moral outrage in the nation. Secondly, it’s not easy to identify the lacunae in the law and the potential for future misuse. And finally, vested interest groups and their lackeys in media and government launch concerted campaigns to portray the proposed law as the panacea to problems for all time to come.

Telltale signs of a bad law

How do we identify a bad law? Fortunately, it’s not a rocket science as they usually share some common characteristics.

Vested Interest Groups

We need to keep our antennae up when laws get disproportionate inputs from interest groups with biased ideological positions. Radical feminists for example defend the Dowry law vehemently despite its obvious flaws.

Burden of Proof

When the burden of proof is shifted onto the accused, such a law is definitely unfair. In most cases, this happens in ways that are not easily apparent. Usually, the burden of proof required for an arrest such as reasonable suspicion or prima-facie evidence is reduced. While the accused may get acquitted eventually, he will suffer severe emotional and physical distress due to arrest and custody. For many people, an arrest in a criminal case is a severe punishment by itself. For people without sufficient resources or access to a lawyer, getting bail becomes difficult.

Weasel Words

A favourite trick is to use vague definitions of crime that can be broadly interpreted. Take this for an example

“Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine”

The relative of the husband can include potentially anybody including all his siblings and their spouses. The term “cruelty” can interpreted to include even some harsh words exchanged during marital discord.

In-built Bias

We need to look out for law that recognizes the act of crime in only specific contexts of the victim and the offender. For example, while it may be much lesser in sheer numbers, domestic violence by women against their husbands and other men is not an unknown phenomenon.

Social Impact

Our society is primarily built on the principled of self-governance and self-correction both at the level of communities and families. Any ill-thought state intervention in these domains is suicidal. The Indian state lacks both the ability to enforce the law or deal with misuse in such circumstances. But the laws may end up severely compromising the inbuilt institutions for self governance and correction within our communities.

The Rape Law

 The recent incident in Delhi was distressing to the all of us. The turnout of ordinary men and women on the streets braving the cold and the water cannons was sufficient proof of our collective outrage. Our heart goes out for the girl whose life was snuffed out and her grief-stricken family. However, the government and Delhi police handled the entire case in a shameful manner. But, in an election year, the government must be seen to do something even if they are least interested. At the same time, radical feminist activists have taken over the debate to insert their agendas. The emotional state of the nation is ripe for hijacking. So, it seems like we are set for another bad law in near future. Here are some things we need to understand and consider in a potential new law.

Marital Rape

Forced sex with wife is being defined as “Marital Rape”. While all sensible people would agree with this in principle, we are now faced with a dilemma of defining this crime. What would constitute “forced sex” in a marriage? How would that be proven? Will it be punished just like any other rape? Can a wife not force sex on her unwilling husband? Would that be a crime as well?

It seems that the existing laws on legal separation, divorce and domestic violence are more than sufficient to deal with this issue without the need for new law on this subject. There is really no demand for this on the street. The only people clamoring for this seem to be the usual suspects among the radical feminist elite.

Consensual Sex

Anybody who has lived in our metros and even smaller towns is now familiar with the concept of “live-in” relationships. When consenting adults engage in a relationship, it’s assumed that they are ready to deal with the consequences that come with it. But, frequently women lodge a “rape” complaint against a man after the relationship goes sour. In many cases, this is used as leverage to either force marriage or to extract money. It is apparent that these cases do not satisfy any “normal” definition of rape as the sex has been totally consensual. The legal system has also been partial to women as they see them as cheated. The underlying assumption is that the women would not have consented unless the man promised marriage. However, this assumption is no longer valid under the changed social context in urban settings. Can a man complain of rape similarly when a woman dumps him? This aspect of law is being totally sidelined.

Penalty for False Accusations

Barring special circumstances, it makes sense that enhanced punishment for rape offences should be accompanied by suitable penalties for false complaints. Otherwise, we will see rampant misuse of such laws without any fear of retribution. We don’t even see the beginning of discussion on such a provision.

Avoiding Entrapment

A “strong” law usually results in a less stringent standard for evidence. This can be justified in most circumstance as the rape victim is not able to provide such evidence other than her own testimony. However, this can also be used for victimizing and entrapping people. It is therefore necessary to clearly identify the situations in which such her testimony is given strong evidentiary value. In all other cases, the law should not dilute the evidentiary requirements.

Wisdom lies in not reacting in the heat of the moment. Poorly conceived laws invariably lead to poor outcomes. No law is much preferable to a bad law. In any case, we cannot solve serious issues like rape by legislation .The poor namboodiri in our story could have thought of a dozen different options to deal with the tiger. However he chose clutch the tiger’s tail. Should we too do the same again?